20190124 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA DISTRICT REGISTRY OF DAR ES SALAAM AT DAR ES SALAAM CIVIL APPEAL NO. 234 OF 2017 {Arising from Matrimonial Cause No.28 of 2016 of the Resident Magistrates' Court of Dar es Salaam at Kisutu) EXON KIPOLE ............................................ APPELLANT VERSUS MARIAM NG'HWANI .............................. RESPONDENT JUDGMENT I. ARUFANI, J. This judgment is for the appeal originating from Matrimonial Cause No. 28 of 2016 of the Resident Magistrates' Court of Dar es Salaam at Kisutu delivered on 19th July, 2017. The respondent in the instant appeal, Mariam Ng'hwani instituted the above mentioned matrimonial cause before the mentioned trial court seeking for a decree of declaring her marriage with the appellant, Exon Kipole a nullity, custody and maintenance of their _children, punitive damages against the appellant, equal division of the properties acquired during subsistence of their purported matrimonial relationship and the costs of the petition. 1 The background of the matter as discernible from the record of the trial court is to the effect that, the appellant and respondent started their love affairs between 2008 and 2009. By that time the appellant was working in the office of the Controller and Auditor General at Dar es Salaam and the respondent was working at Mwanza in the office of the Commissioner for Land. Later on the respondent was employed by the Judiciary of Tanzania as a Resident Magistrate and stationed at Dodoma. The appellant and the respondent continued with their relationship whereby they used to visit each other and by the end of 2009 the respondent became pregnant. After the respondent became pregnant the parties entered into Christian marriage which was contracted on 10th April, 2010. They continued to cohabite while living separately as the appellant was living at Dar es Salaam and the respondent was living at Dodoma due to the nature of their works. On 11 th June, 2010 were blessed to have one issue namely Joan Lemi Kipole. On March, 2011 the respondent was seconded to work in Seychelles as a Resident Magistrate for a period of 24 months. The appellant allowed the respondent to go for the work and he escorted her to Seychelles. 2 ' /J The respondent continued with the work in Seychelles and she used to come to visit her family during her leave. She said in 2013 she discovered the appellant had another Christian Marriage with one Leonida Mayunga which was celebrated on 29th April, 2000. As the former marriage of the appellant with the said woman has not been dissolved it makes the marriage between the appellant and the respondent to· be void ab initio hence a. nullity. The respondent extended her contract of working is Seychelles and on 14th September, 2015 she was blessed to have another child namely Josephine Emily Kipole. The respondent averred that, during their relationship they managed to acquire assets by their joint efforts which are Plot No. 107 Block H. Itega located at Dodoma, Plot No. 47 Block G located at Nyakato Mwanza with unfinished house, Plots Nos. 205, 206, 207, 208, 209, 2010 and 2011 Block F located at Kingani Beach within Bagamoyo District in Coast Region, House at Masaki Dar es Salaam, house at Salasala Dar es Salaam, 400 Acres of land at Kilindi Tanga "Kwasasa Farm" and 50 Acres of land located at Bagamoyo District in Coast Region. She said they also formulated a company known as NEL International Limited owned by them and their first child and some of the mentioned properties were owned under the said company. 3 --- The respondent stated that, after seeing the appellant was dishonest as he failed to disclose to her he had another marriage with another woman and he failed to disclose their putative marriage to his employer and he had attempted to transfer ownership of the land owned by them under the NEL International Company to his own name she filed the above stated petition in the trial court seeking for the reliefs mentioned herein above against the appellant. The appellant stated that, although he consented for the first term of two years contract for the respondent to work in Seychelles and supported her fully but the respondent extended the terms of the contract without his consent and up to now is still living in Seychelles. He also stated the respondent knew he had a broken marriage with his former wife and she knew the children of the former wife as sometimes she used to stay with them. He stated is the respondent compelled him to enter into marriage with her before dissolving his former marriage. He said their issues are not blessing of their marriage as the first child was born hardly two months after celebrating the marriage and the second child is the cause of conflict between them as he is not sure if he fathered the said child. He said he want a DNA test to be carried out to establish if he is the father 4 ., of the second child. As for the Plots of land located at Block F Kingani within Bagamoyo District in Coast Region the appellant stated to have purchased the farm from one Salehe Abdallah Arab on 24th December, 2013 by using his own money as he was not living with the respondent under the same roof. He said after purchasing the farm he applied for the same to be surveyed and after being surveyed is when the mer,tio_ned-------- -- Plots were acquired. He state~___ that,.-later··on···1:he-··;~~pondent cheri?hed..the- idea--of developing the properties in the name of NEL International Limited which obtained its certificate of th registration on 15 November, 2013 but he decided to develop the properties by using his own name as the sole proprietor. He said to have applied for Plot No. 107 Block "H" located at Itega Dodoma on 1st January, 2009 while the respondent was living in a Government house. As for the Plot No. 47 Block G Nyakato Mwanza the appellant stated that, the respondent has no right on it as he purchased the same from one Matta William Msulwa on 20 th September, 2008 and its ownership was transferred to him on 15th September, 2009. As for the plot at Salasala within Kinondoni District he said the respondent has no right over it as he purchased the same th from one Rogers Magwaza on 24 July 2008 and construction 5 commenced immediately and completed on 11 th December, 2009. With regards to the house registered as Flat No. 3 Block "B" Chole Road in Dar es Salaam he said is a mere tenant in the said house as is a Government house. He denied to own 50 Acres of land at Bagamoyo District either alone or jointly with the respondent. He stated in respect of 400 acres of the farm at Kwasasa that, ~e ow~~es-0f---------- - ------ land in that area as the rest of the land-is-a-reserve land. He said ---------- . - - the responaent-~ any right over that farm as she contributed nothing in acquiring the same. The appellant state that, although is not disputing grant of the first prayer of the respondent as appearing iri the petition but is disputing the rest , of the prayers as the respondent ·wanted to enrich herself gratuitously from his earning. He prayed the custody of their first issue to be placed on him and the DNA test in respect of· the second child to be carried out to establish her father and prayed the rest of the prayers to be dismissed with costs. After full hearing of the matter the trial court found the marriage between the appellant and the respondent was illegal as the appellant had no capacity to marry another woman as he had already married another woman under Christian marriage. The trial court ordered the two issues born by the respondent to be - 6 under custody of the .respondent and the appellant was ordered to pay for their maintenance at the tune of Tshs. 700,000/= per month. The court also ordered the appellant to pay for education expenses for the issues. The court also distributed the properties alleged were acquired by the parties during the subsistence of their purported marriage. The appellant was aggrieved by the judgment and decree of the trial court and filed in this court a memorandum of appeal containing the following grounds of --- 1. That the honourable magistrate erred in law and in fact for using employment status of the parties herein as a basis of finding that Plots No. 205, 206, 207, 208, 209, 210 and 211 Block F. Kingani · Beach Bagamoyo are matrimonial assets and subsequently dividing them between the parties herein. 2. The hounourable magistrate erred in law and in fact for holding that the respondent was entitled to a share in Plots No. 205, 206, 207, 208, 209, 210 and 211 Block F. Kingani Beach Bagamoyo while she had failed to prove her contribution towards the acquisition of the said plots. 3. The hounourable magistrate erred in law and in fact for not finding that the dispute over Plots No. 205, 206, 207, 7 t 208, 209, 210 and 211 Block F. Kingani Beach Bagamoyo are arising under Company law and cannot be determined within the matrimonial cause. 4. That the honourable magistrate erred in law and in fact for using employment status of the parties herein as a basis of finding that a house at Salasala is matrimonial assets and subsequently ordering the valuation to be made on the structure and apportion its Va"lue into two to give the respondent her share. 5. That the honourable magistrate erred in law and in fact for assuming that parties gave each other psychological support that led to the acquisition of Plots No. 205, 206, 207, 208, 209, 210 and 211 Block F. Kingani Beach Bagamoyo and house at Salasala while there was no evidence to that effect. 6. That the honourable magistrate erred in law and in fact for granting a relief of school fees while it was not sought for by the respondent herein. 7. That the honourable magistrate erred in fact for granting maintenance at a tune of Tshs. 700,000/= per month without considering the appellant means of paying the same. 8 8. That the honourable magistrate erred in law and in fact by delivering unclear decision on the development made to plot No. 47 Block G. located at Nyakato Mwanza while there was enough evidence that the fence wall was built by the appellant herein. When the appeal came for hearing the appellant was represented by Mr. Barnabas Luguwa, learned advocate and the respondent was represented by Mr. Samson Mbamba, learned advocate whose brief was held by Mr. Ludovick Nixon, learned advocate. By consent of the counsel for the parties the appeal was argued by way of written submission. I commend the counsel for the parties for their illuminating submission which I will be referring to the same in the course of determining this appeal. After going through the record of the trial court and read the submission of the counsel for the parties carefully the court has found it is proper to determine grounds number 1, 2, 3, 4, 5 and 8 together as they are centering on one major ground relating to acquisition and distribution of the properties alleged to have been acquired jointly by the parties - during subsistence of their purported marriage. The rest of the grounds of appeal (Le grounds number 6 and 7) which relates to the maintenance and 9 school fees of the infant children of the marriage will be determined together. Starting with the first limb of the grounds of appeal the court has found proper to state at this juncture that, despite the fact that the marriage between the parties in the appeal at hand is a nullity as the appellant had no capacity to enter into marriage with the respondent as he was still in another Christian Marria_ge___________ --- - which had-_not -been-dissolved "but as "tie-Id -i~. th~--~~~~ o-f--~ecilia -- - - - - -- -- . . Mshamu V. Dick Kawogo, [2001] TLR 318 they have right to the properties acquired jointly during subsistence of the stated relationship. The properties stated were acquired during subsistence of the parties' relationship as listed in paragraph 16 of the petition filed in the trial court and referred in the grounds of appeal filed in this court by the appellant are Plots No. 205, 206, 207, 208, 209, 2010 and 2011 Block "F" located at Kingani Beach within Bagamoyo District, house located at Salasala in Dar es Salaam and house on Plot No. 47 Block "G" located at Nyakato in Mwanza. The issue to determine here is whether the mentioned properties were acquired during subsistence of the relationship of the parties and if the answer is in affirmative how much share each party is entitled in the mentioned properties. 10 As rightly submitted by the learned counsel for the appellant . distribution of the properties acquired jointly by the parties who have lived together as husband and wife is governed by section 114 of the Law of Marriage Act, Cap 29 R.E 2002. Among the factors the court is required to take into consideration when ordering division of the matrimonial assets as provided under section 114 (2) (b) of the above referred law is the extent of the contributions made by each party in money, property or work towards acquisition of the properties. Now while the respondent in the appeal at hand stated in her recorded evidence and her learned counsel stated in his submission that, the respondent contributed money in acquisition of the mentioned properties, the appellant strongly opposed the said evidence and submission. The court has found as rightly submitted by the learned counsel for the appellant to know to what extent a party has contributed to the acquisition of matrimonial properties evidence must be adduced before the court to establish it. That was stated so in the case of Bibie Maurid V. Mohamed Ibrahim [1989] TLR 162 where it was held inter alia that:- "There must be evidence to show the extent of contribution before making an order for distribution of matrimonial assets. " 11 The above holding is in line with what was submitted by the learned counsel for the appellant in his submission that, the respondent was required under sections 7, 110, 111 and 112 of the Evidence Act, Cap 6 R. E 2002 to adduce evidence before the trial court to establish to what extent she contributed in acquisition of the properties stated to have been acquired during subsistence of their purported marriage. Treading on the above position of the law the court has found as stated by the learned counsel for the appellant the learned trial magistrate found the respondent contributed money in acquisition of the mentioned properties. The trial magistrate arrived to the above finding after seeing the respondent is a senior Government employee who was earning a good salary and allowances and after being seconded to Seychelles he was getting the salary of about two millions and five hundred thousand shillings per month. It is the view of this court that, although getting a good salary and allowances is a conditional precedent that a party has an ability to contribute in acquisition of matrimonial assets but that is not a factor required to be considered while ordering distribution of matrimonial properties as the factor to be considered is the extent of contribution made by a party in acquisition of the properties. 12 J Starting with the Plots No. 205, 206, 207, 208, 209 2010 and 2011 at Kingani Beach within Bagamoyo District the court has found that, as appearing in the recorded evidence of the appellant and submitted by his learned counsel, the appellant stated to have purchased the land while un-surveyed on 24th December, 2013 from one Salehe Abdallah Arab when the respondent was in Seychelles. On her side the respondent stated in her recorded evidence that, she contributed in acquisition of the mentioned plots of land as she used to bring money to the appellant when she came on leave to visit his family. She also said the appellant had access to her bank's account and he used the money she brought to him and from her bank account to purchase the said land. As rightly argued by the learned counsel for the appellant it is true that, although the land was purchased when the parties were still in their purported marriage but the respondent did not state how much she contributed in purchasing and surveying the mentioned plots of land. She just gave a flat evidence that she used to bring money to the appellant and the appellant had access to her bank account without stating or showing how much money she brought to the appellant or how much money the 13 J • appellant withdrew from her bank account for acquisition of the mentioned plots of land. Despite the fact that Kalegeya, J (as he then was) warned in the case of Samwel Olun'ga Igogo and Two others V. Social Action Trust Fund [2005] TLR 343 cited in the submission of the learned counsel for the appellant that courts are supposed to be very careful with mere flat allegations in respect of contribution of a party in acquisition of matrimonial assets but he stated in the same case that, in marriage relations most matters transpires without records. Although the court is not bound by what was held in the above case as is a decision of the High Court but by borrowing a leave from what was stated in the above case the court has come to the view that, the issue as to whether the respondent contributed in acquisition of the mentioned plots of land depends to a great extent on credibility of her evidence which as held Ali Abdallah Rajah V. Saada Abdallah Rajah and Others [1994] TLR 132 the trial court was in a better position to assess it than this court. The study of the record of the trial court done by this court has failed to reveal anything material which can make it to find the trial court magistrate erred in finding the respondent contributed some money in acquisition of the mentioned plots of 14 land. The court has arrived to the above finding after seeing that, although the said plots of land were purchased when the respondent was in Seychelles and are registered in the name of the appellant but the land was purchased and surveyed when the parties were still under the purported marriage relationship. That being the position the court has found it is difficult to rule out the respondent did not contribute anything in acquisition of the said land after being of the view that, even if it will be taken the respondent did not contribute money in purchasing the said land but the respondent was taking care of the child born out of their relationship on that period of time. To the view of this court and as held in the case of Bi Hawa Mohamed V. Ally Sefu [1983] TLR 32 and Eliester Philemon Lipangahela V. Daudi Makuhuna, Civil Appeal No. 139 of 2002, even taking care of the children or family is a contribution towards acquisition of matrimonial property which is supposed to be taken into consideration in the division of matrimonial assets. The court has also found the appellant stated during cross examined by the counsel for the respondent that, after purchasing the land there was suggestion that, it should be owned under their family company namely NEL International Limited but later on he decided to register the plots in his own 15 name as a sole proprietor of the plots. Although the appellant stated to have decided to register the plots on his own name after seeing the company was dormant and had no TIN number but it appears there was some communication between the appellant and the respondent in relation to how the mentioned plots of land should have been owned. The above stated view makes this court to find the trial court did not error in finding the plots of land located at Block "F" Kingani Beach within Bagamoyo District was acquired jointly by the parties and it was supposed to be distributed to the parties under section 114 (1) of the Law of Marriage Act. The argument by the learned counsel for the appellant that as the matter before the trial court was matrimonial and the dispute over the plots of land located at Kingani Beach within Bagamoyo District is arising under company law which would not have been determined in matrimonial proceedings the court has found as rightly submitted by the learned counsel for the respondent the plots were not registered in the name of the company. Therefore as the plots are not owned by the company but by the appellant it cannot be said the dispute over the said plots is governed by the company law which the trial court would have no jurisdiction to entertain it. In the premises the court has 16 ,, found the stated argument has no any merit which can make the court to sustain it. Coming to the house on plot No. 47 Block "G 11 located at Nyakato in Mwanza the court has found as submitted by the learned counsel for the appellant the evidence adduced by the appellant before the trial court shows the plot was purchased by the appellant in 2008 with small unfinished house and finishing was done in 2009 when the parties were yet to enter into the purported marriage. The court has considered the evidence of the respondent that, although she found the appellant had already purchased the said plot of land but she contributed in building a small house on the said land and find she didn't say when and how much she contributed in developing the said house. To the contrary the court has found the appellant stated in his testimony that, he bought the property in 2008 with unfinished small house and erected fence. He said the house is not habitable, it doesn't contain windows, doors, no water, toilet and sewage system etc. The question is, if the land was bought while containing a small unfinished house how comes that the respondent contributed in building a small house on the said plot of land. If it will be said she contributed money for finishing the house another question will be what was the extent of her 17 contribution in finishing the house which the appellant said it was fished in 2009? The court has found as rightly argued by the learnrd counsel for the appellant the respondent had a duty under section 110, 111 and 112 of the Evidence Act and as held in the case of Bibie Maurid (supra) to adduce evidence to establish how she contributed in the development of the house located at Nyakato in Mwanza. Her flat evidence and the submission of her learned counsel that, she was getting good salary and allowances which was not even stated how much she was getting and how much she contributed in the development of the house and the argument that she applied for a bank loan has been found by this court cannot be sufficient to establish on balance of probability that the respondent contributed in developing the house at Nyakato Mwanza as argued by the counsel for the respondent. The court has been of the view that, as there was sufficient evidence from the appellant to establish the house at Nyakato Mwanza was purchased while unfinished and finishing was completed in 2009 before the parties entered into purported marriage the respondent was supposed to adduce evidence to establish her extent of contribution in the development of the said house so that it can be subjected to their distribution under 18 section 114 (3) of the Law of Marriage Act. As held by Kalegeya, J in the case of Samwel Olun'ga Igogo (supra) a mere flat evidence by the respondent that her good salary, allowances and bank loan were used to develop the house was short of establishing she contributed anything substantial to develop the house which would have entitled her to get a share from the said house. In the premises the court has found the trial magistrate erred in ordering construction made on the property be valued and its value be divided into two in order the respondent to get her share as there was no evidence to establish the extent of her contribution in the development of the said house. With regards to the house located at Mbezi Salasala in Dar es Salaam the court has found the appellant stated without being disputed that, he purchased the land at Mbezi Salasala in 2008 and started construction immediately. He said to have continued to develop the plot from 2008 up to 2010/2011. Despite the fact that the respondent did not adduce evidence to establish the extent of her contribution in the construction of the said house but the court has found part of construction of the said house was done when the parties were under the purported marriage relationship. 19 That being the case the court has found it cannot be said the respondent did not contribute anything in the construction of the said house because as stated earlier in the preceding grounds taking care of the child of the appellant is a contribution which need to be counted in distribution of matrimonial properties. The court has also found it is not only that the respondent was taking care of the child of the appellant but she also sent Yusuph Mgaya (PW2) wh_o__ was her servant to supervise· construction of the house and Frank John Nyinge (PW3) who was her brother to buy building materials like tiles, doors and aluminium for construction of the house. The above finding makes the court to come to the view that it cannot be said the respondent is not entitled to get any share from the said house while it was partly constructed when the parties were under purported marriage relationship and there is evidence to establish she participated in the construction as demonstrated hereinabove. Since there is no evidence available to establish how much money the respondent contributed in construction of the house and as the appellant testified the construction started in 2008 when the parties were not yet to enter into the purported marriage then it cannot be said the respondent is entitled to half of the value of construction of the 20 house as held by the trial court. To the view of this court the respondent is entitled to a lesser share than the appellant. As for the second limb of the grounds of appeal which relates to the maintenance of the infant children of the parties and payment of their school fees the court has found that, as rightly argued by the learned counsel for the appellant section 129 (1) of the Law of Marriage Act states clearly that, it is a duty of a man to maintain his infant children whether they are under his custody or under custody of another person. However, as stated in the same provision of the law the said duty is subject to the means and station in life of the responsible man. According to the evidence adduced before the trial court the appellant is a Government employee whose gross salary as stated by the respondent is Tshs. 1,200,000/= per month and after all deductions his net salary is Tshs. 800,000/= per month. That being the income of the appellant per month it is the finding of this court that, the order of the trial court that the appellant should pay Tshs. 700,000/= per month as maintenance for their two children is exorbitantly high when compared to his ascertained income per month. The court has considered the evidence of the respondent that the appellant has other sources of income which are trees and others and find it was not 21 .. . ... established, how much the appellant used to get from the stated other sources and it was not established if the said other sources are in existences and are reliable. Since the appellant is entitled to use his income for his survival and other necessities the court has found the order of payment of maintenance of the children of the respondent at the tune of Tshs. 700,000/= per month out of his net income of Tshs. ___ .. - - - - - - - 800,000/= ·per month is u·nreasonably high. The court has arrived to the above finding after seeing it was also stated the appellant has other children and another family which he might be responsible for their maintenance. In the premises the court has found the trial court magistrate erred in ordering the appellant to maintain his children and the respondent to the stated tune as is too high. As for the argument that the relief of the school fees or educational expenses was neither pleaded nor sought for by the respondent but was granted by the trial court, the court has found as rightly submitted by the learned counsel for the respondent the term maintenance as provided in the above provision of the law is very wide and it encompasses the education expenses. For clarity purposes the said provision of the law provides as follows:- 22 '~ave where an agreement or order of court otherwise provides, it shall be the duty of a man to maintain his infant children, whether they are in his custody or the custody of any other person, either by providing them with such accommodation, clothing, food and education as may be reasonable having regard to his means and station in life or by paying the cost thereof. H _{s_rnp_hasis _added-}.-- -- -- -- -- -- -- -- -- -- -- ~ -- -- -- -- ~ - - - - The wording of the above provision of the law shows clear that, payment of education expenses for the children is party of maintenance for the children which a man is duty bound to provide under the above provision of the law. In the premises the court has found the trial court did not error to order the appellant to pay school fees for the children as part of the maintenance of the children. Basin on all what is stated herein above the court has found the appeal filed in this court by the appellant deserve to be allowed partly. The order that construction of house at Block "G" Nyakato Mwanza be valued and its value divided equally to the parties is hereby set aside as there is no sufficient evidence to establish how the respondent contributed in developing the said property. With regards to the house at Mbezi Salasala Jn Dar es 23 Salaam the court has found as the evidence available managed to establish the respondent contributed partly to the construction of the house the order of the trial court in relation to the said house is altered by ordering that, after the valuation of the construction of the house the respondent should be paid 30% of the value of construction of the house as her share to the house and the remaining value should be left to the appellant. As for the plots of land located at Kingani Beach within Bagamoyo District the court has failed to see any error in the finding and order of the trial court hence the same is hereby left unaltered. With regards to the maintenance of the children the court has found in the light of the ascertained income of the appellant and his station of life it is proper to vary the order of payment of Tshs. 700,000/= per month and instead of that he will be paying Tshs. 400,000/= per month for the two children plus the school fees as ordered by the trial court. In the upshot the appeal is partly allowed to the extent stated herein above. Since the appeal has been allowed partly the court is ordering each party to bear his or her own costs. It is so ordered. Dated at Dar es Salaam this 31 st day of December, 2018. 24 IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL APPEAL NO. 234 OF 2017 ,, EXON KIPOLE ·················••mm ■ a ■ m••······························ APPLICANT VERSUS MARIAM NG'HWANI .... ........................ ... . .. . . . ........ RESPONDENT ORDER Date : 24/01/2019 Coram: J. C. Tiganga, DR For the Appellant : Mr. Luguwa, Adv. For the Respondent: Absent CC: Absent IL Order: Judgment delivered in open court in the presence of the counsel for the Appellant Mr. Luguwa but in the absence of the counsel for the Respondent, this 24/01/2019. . ---~ ~--.n.· ~-~ J. C. Tiganga DEPUTY REGISTRAR 24/01/2019